State v. Gay

110 S.E.2d 458 (1959) 251 N.C. 78

STATE of North Carolina
v.
Milton (Pap) GAY and Andy Barbour.

No. 221.

Supreme Court of North Carolina.

October 14, 1959.

Malcolm B. Seawell, Atty. Gen., Ralph Moody, Asst. Atty. Gen., for the State.

Vernon F. Daughtridge, Wilson, for defendant, appellant.

PER CURIAM.

Defendant Gay introduced evidence in his behalf. He thereby waived his motion for judgment of nonsuit made at the close of the State's evidence. G.S. § 15-173. His motion for judgment of nonsuit made at the close of all the evidence challenges the sufficiency of the entire evidence to carry the case to the jury. State v. Norris, 242 N.C. 47, 86 S.E.2d 916; State v. Pasour, 183 N.C. 793, 111 S.E. 779.

In considering the sufficiency of the entire evidence, only that favorable to the State need be considered. State v. Troutman, 249 N.C. 395, 106 S.E.2d 569; State v. Ewing, 227 N.C. 535, 42 S.E.2d 676.

The Court's inquiry on the motion for judgment of nonsuit is directed to the sufficiency of the evidence to warrant its submission to the jury: neither the weight nor the reconciliation of the evidence nor the credibility of the witnesses is for the Court. State v. Hovis, 233 N.C. 359, 64 S.E.2d 564; State v. Utley, 126 N.C. 997, 35 S.E. 428.

When the State's evidence is conflicting—some tending to incriminate and some to exculpate the defendant—it is sufficient to repel a motion for judgment of nonsuit. State v. Horner, 248 N.C. 342, 103 S.E.2d 694; State v. Robinson, 229 N. C. 647, 50 S.E.2d 740.

There is no merit in defendant Gay's contention that the State's evidence makes out a complete defense for him. The State's evidence considered in the light most favorable to it tends to show that defendant Gay, Andy Barbour and Marie Jernigan met Wade Thorne on a Saturday night on a street in the city of Wilson, went to Thorne's home in the city to take drinks of whisky, that while there Gay, Barbour and Jernigan each took a drink, that Gay and Thorne got to arguing and fighting at first with their hands, that Thorne had a knife and cut Gay, and Gay got a stick of wood or a chair or table leg and hit Thorne several blows with it on his head, fracturing his skull and causing his death.

A careful consideration of the record leads us to the conclusion that the entire evidence considered in the light most favorable to the State, and giving to the State the benefit of every reasonable inference to be fairly drawn therefrom, was sufficient to warrant the submission of the case to the jury on murder in the second degree and manslaughter. State v. Kelly, 243 N.C. 177, 90 S.E.2d 241.

The assignments of error in respect to the evidence and the charge of the court have been examined, and none is sufficient to warrant a new trial. All are overruled.

No error.

HIGGINS, J., not sitting.